Background information on Virginia's TMDL program
Legal and Regulatory Framework
�303(d) of the 1972 Clean Water Act requires the States to identify waters not in compliance with water quality standards, establish priorities for scheduling the development of TMDLs, develop a list of the impaired waters, and develop TMDLs for the waters on the �303(d) list. In July, 1992, EPA promulgated regulations, 40 CFR �130.7, for �303(d) of the Clean Water Act. The Clean Water Act and the enabling regulations did not contain additional implementation measures. TMDLs were to be implemented through existing pollution reduction regulations and voluntary strategies.
In 1997, the Virginia General Assembly enacted the Water Quality Monitoring, Information, and Restoration Act, �62.1-44.19:4 through 19:8 of the Code of Virginia. This statute directs DEQ to develop a list of impaired waters and develop TMDLs for these waters. Also, the State statute directs DEQ to develop Implementation Plans for the TMDLs.
In 1998, DEQ and DCR signed a Memorandum of Understanding (MOU) with EPA agreeing to develop TMDLs in accordance with a schedule for the 247 DEQ listed impaired waters (excluding shellfish waters) on Virginia's 1998 303(d) List.
The MOU schedule was replaced a year later, by a schedule in a Consent Decree filed in the United States District Court for the Eastern District of Virginia. The American Canoe Association and the American Littoral Society filed a complaint against EPA for failure to comply with the provisions of �303(d) of the Clean Water Act in Virginia. In 1999, EPA signed a Consent Decree with the plaintiffs. The consent decree contained a 10-year TMDL development schedule through 2010, replacing the one in the MOU. The 10-year development schedule set forth by the consent decree also included some waters that were not on the 1998 303(d) TMDL priority list.
The table below shows the number of waters identified as impaired, the number of waters identified for TMDL action and the estimated number of TMDLs to be developed and submitted to EPA by 2010. The number of TMDLs differs from the number of waters identified as impaired because many waterbodies contain more than one pollutant; TMDLs must be completed for each pollutant.
Impaired Waters for TMDL Action and Number of TMDLs Due by 2010
Number of Waters | Number of Waters | Estimated Number | |
|---|---|---|---|
DEQ |
247 |
247 |
295 |
DEQ |
285 |
260 |
260 |
EPA |
71 |
18 |
18 |
Consent Decree |
200 |
75 |
75 |
Totals |
803 |
600 |
648 |
Roles and Responsibilities of State Agencies
1. Department of Environmental Quality (DEQ)
The State Water Control Law authorizes the State Water Control Board to control and plan for the reduction of pollutants impacting the chemical and biological quality of the State's waters resulting in the degradation of the swimming, fishing, shell fishing, aquatic life, and drinking water uses. For many years the focus of DEQ's pollution reduction efforts was the treated effluent discharged into Virginia's waters via the VPDES permit process. The TMDL process has expanded the focus of DEQ's pollution reduction efforts from the effluent of wastewater treatment plants to the pollutants causing impairments of the streams, lakes, and estuaries. The reduction tools are being expanded beyond the permit process to include a variety of voluntary strategies and BMPs.
The DEQ is the lead agency in the TMDL process. The Code of Virginia directs DEQ to develop a list of impaired waters, develop TMDLs for these waters, and develop Implementation Plans for the TMDLs. DEQ administers the TMDL process including the public participation component and formally submits the TMDLs to EPA and the State Water Control Board for approval.
Additionally, the �303(e) of the Clean Water Act and EPA's water quality management regulation 40 CFR 130.5 requires the States to develop Water Quality Management Plans (WQMP) for the major watersheds. The purpose of the WQMPs is to present the processes to be used in the watershed for attaining and maintaining water quality standards. Also, the WQMPs serve as the repository for all TMDLs and TMDL Implementation Plans developed within the watershed. DEQ, with the assistance of DCR, DMME, and VDH plans to update the State's 303(e) WQMPs concurrently with the TMDL development effort.
2. Department of Conservation and Recreation (DCR)
DCR is authorized to administer Virginia's nonpoint source pollution reduction programs in accordance with �10.1-104.1 of the Code of Virginia and �319 of the Clean Water Act. EPA is requiring that much of the �319 grant monies be used for the development of TMDLs.
Because of the magnitude of the nonpoint source component in the TMDL process, DCR is a major participant the TMDL process. DEQ and DCR have signed a Memorandum of Understanding agreeing to a cooperative effort in the TMDL process including Implementation Plan development. Specifically, DCR agreed to assume responsibility for the nonpoint source component of all TMDLs, with the exception of mineral extraction, including the final allocations. This includes those TMDLs contracted by DEQ. Also, DCR agreed to present the nonpoint source component of the TMDLs in the public forums. Another major role DCR has in the TMDL process is the awarding and managing the contractual services for the development of TMDLs related to nonpoint sources.
3. Department of Mines, Minerals, and Energy (DMME)
The DMME is authorized by �45.1-254 of the Code of Virginia to issue both Coal Surface Mining Operation (CSMO) permits and by the Clean Water Act to issue National Pollution Discharge Elimination System (NPDES) permits for industrial discharges from coal mining operations. On September 5, 2000, DEQ and DMME signed a Memorandum of Understanding (MOU) agreeing to a cooperative effort in the TMDL process as it relates to mining impairments.
The DMME administers the mineral extraction component of the TMDL process, awards and manages contractual services for TMDL development and special TMDL related studies, and participates in the public participation process.
4. Virginia Department of Health (VDH)
The VDH is responsible for classifying shellfish growing waters and monitoring the waters for fecal coliform bacteria. Also, the VDH conducts shoreline surveys to determine potential sources of contamination. This information is evaluated by the VDH to determine areas that are open or restricted for shellfish harvesting for direct marketing. DEQ places the restricted areas on the 303(d) List for TMDL development.